Monday, May 02, 2016

Copyright Office 512 Roundtable: Service provider response

Official description: Handling of and response to notices,
including timing and notices from high-volume senders; sending and handling of
counter-notifications; volume of notices and counter-notifications; costs and
burdens on large- and small-scale service providers; role of automation,
including filtering technologies; noncompliant notices and misuse of notice
process; rejection of notices; impact of takedowns on users and public;
protections for fair use; relevant empirical data; and other pertinent
issues.

Claggett: ISP experience: Is it working effectively?
Automated notices?

Weinberg: notices are bursty for us: week w/few and then
w/lot. That’s problematic from staff allocation standpoint.But we can handle it.As we see #s go up, need to build internal
tools.

Actual volume: just under 1000 notices last year; trend to
go significantly beyond that. One problem is that those notices tend to be an
IP grab bag.Due to our our site’s
capacities: 3D printing.Addit’l burden
of processing in ID’ing real complaint.Easy to forget that burden from 512 standpoint.

JC: would it be helpful to have a clear form that maybe said
“for copyright claims” on the top—would that aid you?

Weinberg: when we tried to update registration w/CO, took 4
months to find out what to do if we didn’t have a fax.Structure of the form, connecting to back end
would have to involve over time; not clear there are mechanisms to evolve a
standardized form even if it was correct at the time it was deployed.On the flip side, if data about notice
process became more public, that could be worth the process.

Rebecca Tushnet Organization for Transformative Works

The over 600,000 registered creators on our site who’ve
posted over 2 million works, and our small all volunteer coding and legal
teams, appreciate the opportunity to participate.Most ISPs are like us, Wikimedia, Internet
Archive: we receive relatively few notices, they’re generally illegitimate
attempts to assert rights over titles or fair uses, we hand review each one, no
capacity to build filters that are unnecessary anyway.

JC: Might it make sense for big sites?

RT: not here to say that. What I learned from comparing UMG,
Sony, and Warner’s comments with those of other copyright owners advocating for
increased duties for ISPs: I learned that the best filtering system is the one
you’re not using.UMG says Content ID is
60% effective, Sony says it missed millions of infringements.The other content companies, like the book
publishers, are sure that Content ID must be fantastic and therefore should be
applied to the entire internet. But the biggest users of Content ID think it’s
full of holes. There’s always something more to demand: like Angelica Schuyler,
they will never be satisfied.

Brianna Schofield University of California-Berkeley School
ofLaw: Tremendous diversity in how
service providers interact w/the notice system.DMCA classic: intake manageable by hand. Varying degrees of quality of
notices.

Another group gets a large influx of notices; not the
predominant thing for most ISPs.DMCA-auto: reacted to influx by developing automated systems to process.
DMCA-Plus: beyond the requirements of the statutes.Any reaction should take account of this
diversity.

Claggett: could you do percentages?

Schofield: we surveyed a small #, but tried to have a representative
sample of broader ecosystem.

DMCA classic is dominant by far.

Claggett: does this suggest that different policies need to
be made depending on type of ISP?

Schofield: Instead, system is self-managing and reacting to
needs of platforms. Hard to draw lines from policymakers’ perspective to
arbitrarily putting any of them in buckets. Some service providers you might
expect to get lots of notices are actually service providers that aren’t
getting that many notices and don’t need automated processing.

Kevin Rupy USTelecom: Broadband service providers, large,
small and everything in between.Small
rural providers with a couple thousand lines to “traditional” huge broadband
providers like Verizon. Generally speaking, the safe harbor provisions are functioning
as intended. However, we do have issues w/getting §512(c) notices when acting
as mere conduit under §512(a); clear under statute and caselaw that those
notices aren’t valid.Multiple notices
don’t render someone a repeat infringer; we believe that termination under
appropriate circumstances should be narrowly construed and subject to some type
of judicial oversight. Congress, this administration, and our main regulator
the FCC view broadband employment/adoption as a principal goal. So termination
needs to be for real reasons.

JC: if someone doesn’t pay their bill, do they get service
terminated?

Rupy: it would depend on the nature of the
infringement.If hosting that content,
§512(c).

JC: instead of sending a notice, is there an acceptable
alternative that would communicate the P2P infringement issue?

Rupy: we can talk about that, but as we view the framework
currently, sending millions of notices to ISPs under §512(c) when they’re
acting under (a) is not how the DMCA is set up. That’s one reason ISPs are
working w/the content community for a voluntary framework for addressing repeat
infringement.

Claggett: you’re saying a notice is just an allegation of
infringement.In your view, absent
adjudication of infringement, would you not consider it unproven allegation?

Rupy: yes.

Claggett: These millions of notices: what is causing this
phenomenon—just a difference of opinion on legal basis?Is there any recourse in §512 to prevent
that?

Rupy: That’s an improper use of §512.

Claggett: is this barred by §512 or can you use §512(f) or
some other legal recourse?

Rupy: Can’t speak to that.

Claggett: Are specific stakeholders sending them?

Rupy: generally speaking, member companies have seen an
increase over the last few years.Different entities behind that; addressed in comments at broader level.

Claggett: ignore them?

Rupy: varies by provider and situation. Under some voluntary
frameworks, you may see those notices forwarded on to the individual
subscriber.Even with the forwarding,
it’s an allegation of infringement.

Jennifer Pariser Motion Picture Association of America: 512
is best for ISPs of every size. Google can automate; small ISPs don’t spend
much; it’s a cost of doing business whether large or not. That’s where the
imbalance comes: relatively manageable cost of doing business v. creation side
is being killed by piracy and dealing w/great burdens from §512 to little
effect.

In terms of §512(a): CCI is not a voluntary organization;
it’s a contractually based organization with the MPAA, RIAA, and five largest
ISPs, but only those 5.Others are
invited to be members but have chosen not to be.Minimal effect of that program is only for
subscribers of those services; only deals w/P2P piracy; doesn’t end
w/termination.

Marcie Kaufman Ithaka/Artstor: we are stewards of content
licensed to us and provide it to libraries etc. Have a freemium access model
for users.Sit between ISPs and users.
We have to issue our own takedown notices. But we have SharedShelf ISP service
model—content management for digital collections for institutions, integrated
w/licensed materials. They do their own screening of IP rights, and are
generally cautious b/c they’re academic institutions. Fills an important niche
allowing teaching materials to be integrated.

Artstor couldn’t have created this w/o DMCA safe
harbor.We don’t monitor it—it’s
password protected.Needs to be
consideration of the service provider, size, etc. in any changes under
consideration.We are the innovation the
safe harbors meant to protect and changes would really affect innovations like
us.

Kerry Sheehan Public Knowledge: Tempting to see future of
§512 as being solely about ISPs and content creators, but also about internet
users as a whole—increased risk of liability means increased risk of takedown
of protected expression online.[And they
are content creators too!]

Mickey Osterreicher National Press Photographers
Association: Haves and have-nots have completely different view of how this is
working.Fair use has become a
sword—courts have difficulty deciding fair use, so that’s problematic.

Marc Ostrow Law Offices of Marc D. Ostrow: Silent majority:
represents a lot of individual songwriters and recording artists and small
businesses. There are lots of people who never bother to send notices any more
to the YT and FB of the world.Very few
counternotices are even served because the person whose content was taken down
will just repost it quickly.Statutory
damages aren’t that high when you consider the cost of prosecuting litigation
to trial. I’ve had people get angry at takedowns b/c they say they’re fans.

JC: in your view people don’t use counternotice process,
just repost.

Ostrow: in my universe of small publishers, yes. The one
counternotice I’m aware of involved a small classical publisher—a university
concert posted the entire performance, and the composer didn’t like the
performance, and posting an entire work w/o transformation is not fair use;
they claimed it was fair use.

JC: did you sue?

Ostrow: No, b/c of cost/benefit analysis.

JC: did the content come down?

Ostrow: yes, it did, but in other circumstances it’s just
reposted.

Claggett: want to focus on improper notices that are
improper for free speech.

Google’s own statistics say less than 1%.We won’t say there’s never been an improper
notice in the history of the world. Anecdotal. Microscopically small
percentage.

Schofield: Hosts of all sizes talked about notices targeting
noninfringing content. The problem there is that there’s a tendency to take
down content that the service providers do no matter what. Others have a
different risk tolerance profile, like WordPress.Study 2: largely automated notices often
targeting problematic sites.Large
rightsholders are focusing their efforts on big sites.So we looked beyond large rightsholders
targeting those sites. So we pulled notices sent to Google Image search. Tended
to be individuals/small businesses. Different dynamic, with lots more issues of
expression: blogs, message board threads.15% targeting improper subject matter.Help us study!

Claggett: could you go back and determine whether those
procedurally bad ones were based on legitimate content?

Claggett: pro vendors typically had less inaccuracies than
the individual or small business owner notices—is that who they targeted or
their understanding of the law?

A: depending on how you count, 70% of Google Image notices
had problem; we set one particular person’s notices aside, leaving 37% with
problems in image search, and that’s about sophistication.

Claggett: does that suggest in preventing abuse there needs
to be a different solution depending on the type of notice sender if
individuals and smaller businesses—would higher damages make a different amount
of sense?

A: we recommend tailored solutions. By & large, for
automation there are best practices about refining these systems to minimize
errors. We’ve spoken with rights enforcement orgs that say there are mechanisms
to refine algorithms to limit mismatch.Some orgs weigh success on numbers, not on quality. Smaller senders:
educational efforts could be targeted to see what the process is about.

Rebecca Prince, Becky Boop: I’ve been subject of improper
notices based on my fair uses. First: DMCA strikes by competitors. I create
video on YT, which is one of the few platforms that gives you AdSense revenue,
mostly w/in the first few days. Competitors can lob four notices = account
termination; no recourse to reinstate your account. If this is how you make a
living, that’s very serious.YT’s
Content ID system: I have the opposite problem, where I submit a
counternotification, and the company just sits and waits and then just submit a
new notice; they can keep your content down for months, which has a chilling
effect and changes the content you create.

Claggett: are they not complying w/putback?

Prince: material will be reinstated, but company will create
a new followup claim. It’s automated and so no one checks to see it’s a second
claim to keep your content down again.

Haves and have-nots: those exist on both sides!DMCA notice from big copyright owner—people
are scared to counternotify b/c if they consult a lawyer the lawyer has to tell
them about statutory damages.One
woman’s videos have been shown in multiple curated shows at museums; still
thought long and hard about counternotice.Small creators do often decline to interact w/the legal system.But please recognize that if you accept the
testimony that lots of people don’t bother to contest an abuse, that’s true for
people who receive notices too!

Charlyn Zlotnik Photographer: 5 years ago I sent notices to
ISPs and didn’t receive replies.YT
responded w/removals. Lately I’ve been going directly to people posting on
Flickr or Pinterest; it seems like the burden was always on photographers but
it’s out of hand now. There should be notices in real simple English—if you
scanned something from a book, don’t post it. All my older work in books is
being scanned in hi-res.

Perry Bashkoff WEA Digital & Revenue Development:
Practicality of utilizing toolsets given to content owners: encourage
decisionmakers to sit w/a content owner.Tools are good enough; manpower hours to protect works of artists and
talent is simply not manageable.Practical reality of discussion: YT Content ID owner #1—seeing what it
means to receive a counternotice saying “I bought this CD,” or “get lost”—we
get that all the time.

Sheehan: No matter whether you characterize these as
intentional or just mistakes, you get suppression of speech.Every Single Word video series: edits films
down to every single word spoken by a character of color. Excellent critique of
racism in Hollywood; they received a DMCA takedown. What happens when content
is taken down w/out a large public uproar?Rightsholder rescinded a request.

JC: There is a counternotification procedure.

Sheehan: intimidating for users to swear—imbalance of
responsibility b/t notice senders and counternotice senders.SCt has made very clear that fair use
includes expression, BTW.

JC: an unfair takedown notice—there is a procedure available
under the law.

Sheehan: it isn’t working—so maybe we need to refine notices
and make counternotification easier.

JC: education?PK
could do more to educate posters.

Sheehan: could also do more to educate rightsholders about
proper notice. There are things to do to equalize burdens on rightsholders. Not
simply an educational issue but intimidation factor of having to swear under
penalty of perjury.

Schofield: if you extrapolate across the notices, that is
millions of improper notices.

Adrienne Fields, Artists Rights Standard: Incredibly
burdensome. Can’t reach a fraction of infringing uses on the internet. Notices
that I file are rejected for no apparent reason. If they want to take on that
role, they should be responsible for the infringing activity. Incentivized not to
remove b/c they like having traffic from works by big name artists.Rejected where the artist’s name was included
on the video and thirty works appeared in the video. [All I want here is some
recognition of the parallels b/t the “why don’t you sue if they’re not
complying w/the DMCA?” question and the “why don’t you counternotify if the
notice is abusive?” question.]When we
send notice to a conduit, it’s b/c we can’t find them any other way—they use
proxy services.

Michael Housley, Viacom: Even if we had all the notices
perfect and always sent them, piracy is growing. We need more than the notice
black hole.Filtering, other tech
available now that can be used not just for antipiracy but for all sorts of
content identification. [That’s not terrifying from a civil liberties
perspective at all.]

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Text on this blog is licensed under a Creative Commons Attribution 2.5 License. Pictures and works quoted may be subject to other parties' copyrights.
I speak for myself. On this blog, I do not and cannot speak for Georgetown Law, the Organization for Transformative Works and/or AO3.